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Colorado Law re Sexual Exploitation of a Child Under 18 / Possession of Child Pornography(18-6-403 C.R.S.)

What is Colorado sexual exploitation of a child?

Sexual exploitation of a child involves possessing, producing or distributing sexually explicit material (pornography) involving a child under 18. It is a felony under section 18-6-403 of the Colorado Revised Statutes (“C.R.S.”).

Depending on your precise acts, punishment for sexual exploitation of a child in Colorado can include:

1 - 12 years in a prison, and/or

a fine ranging from $1,000 to $750,000.

However, in order to be guilty, the sexually explicit material must exist for someone's sexual gratification. You are not guilty of sexually exploiting a child if:

You didn't know you possessed the material,

The material involved innocent behavior, such as affection,

The material was not intended for anyone's sexual gratification,

The "children" were 18 or older, or

You possessed the material for a legitimate purpose (such as medical treatment of the child).

1. Definitions

For purposes of Colorado's law against sexual exploitation of a child, the following definitions from 18-6-403 (2) C.R.S. apply:

(a) “Child” means a person who is less than eighteen years of age.

(b) “Erotic fondling” means touching a person's clothed or unclothed genitals or pubic area, developing or undeveloped genitals or pubic area (if the person is a child), buttocks, breasts, or developing or undeveloped breast area (if the person is a child), for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved. “Erotic fondling” shall not be construed to include physical contact, even if affectionate, which is not for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved.

(d) “Erotic nudity” means the display of the human male or female genitals or pubic area, the undeveloped or developing genitals or pubic area of the human male or female child, the human breasts, or the undeveloped or developing breast area of the human child, for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved.

(f) “Masturbation” means the real or simulated touching, rubbing, or otherwise stimulating of a person's own clothed or unclothed genitals or pubic area, developing or undeveloped genitals or pubic area (if the person is a child), buttocks, breasts, or developing or undeveloped breast area (if the person is a child), by manual manipulation or self-induced or with an artificial instrument, for the purpose of real or simulated overt sexual gratification or arousal of the person.

(g) “Sadomasochism” means:

(I) Real or simulated flagellation or torture for the purpose of real or simulated sexual stimulation or gratification; or

(II) The real or simulated condition of being fettered, bound, or otherwise physically restrained for sexual stimulation or gratification of a person.

(h) “Sexual excitement” means the real or simulated condition of human male or female genitals when in a state of real or simulated overt sexual stimulation or arousal.

(i) “Sexual intercourse” means real or simulated intercourse, whether genital-genital, oral-genital, anal-genital, or oral-anal, between persons of the same or opposite sex, or between a human and an animal, or with an artificial genital.

(k) “Video”, “recording or broadcast”, or “motion picture” means any material that depicts a moving image of a child engaged in, participating in, observing, or being used for explicit sexual conduct.

2. What acts constitute sexual exploitation of a child?

Under 18-6-403 C.R.S., you commit sexual exploitation of a child when:

You possess sexually exploitative material showing a child under 18 engaged in any of the acts listed above, or

You contribute in any way to making or distributing such materials.

Specifically, 18-6-403 (3) C.R.S. provides:

(3) A person commits sexual exploitation of a child if, for any purpose, he or she knowingly:

(a) Causes, induces, entices, or permits a child to engage in, or be used for, any explicit sexual conduct for the making of any sexually exploitative material; or

(b) Prepares, arranges for, publishes, including but not limited to publishing through digital or electronic means, produces, promotes, makes, sells, finances, offers, exhibits, advertises, deals in, or distributes, including but not limited to distributing through digital or electronic means, any sexually exploitative material; or

(b.5) Possesses or controls any sexually exploitative material for any purpose; except that this paragraph (b.5) does not apply to peace officers or court personnel in the performance of their official duties, nor does it apply to physicians, psychologists, therapists, or social workers, so long as such persons are licensed in the state of Colorado and the persons possess such materials in the course of a bona fide treatment or evaluation program at the treatment or evaluation site; or

(c) Possesses with the intent to deal in, sell, or distribute, including but not limited to distributing through digital or electronic means, any sexually exploitative material; or

(d) Causes, induces, entices, or permits a child to engage in, or be used for, any explicit sexual conduct for the purpose of producing a performance.

3. Colorado penalties for sexual exploitation of a child

3.1. First offense for possession of still images

First-time possession of a small amount of child pornography in the form of photographs or other still images is a Colorado class 5 felony.

Consequences of a first-time conviction for possessing kiddie porn in Colorado can include:

1-3 years in prison, and/or

A fine of $1,000-$100,000.

3.2. Subsequent possession of still images or possession of moving images or many images

a video, motion picture, recording or broadcast of moving visual images, or

more than twenty different items qualifying as sexually exploitative material.

As a class 4 felony, punishment for Colorado sexual exploitation of a child can include:

2-6 years in prison, and/or

A fine of $2,000-$500,000.

3.3. Production or distribution of sexually explicit material

And finally, if you are involved in the making or distribution of child pornography in Colorado, you commit a Colorado class 3 felony. As a class 3 felony, Colorado sexual exploitation of a child carries potential penalties of:

4-12 years in prison, and/or

A fine of $3,000-$750,000.

3.4. Colorado sex offender registration

Conviction of sexual exploitation of a child under 18-6-403 C.R.S. will also require you to register as a sex offender on the Colorado Bureau of Investigation's felony sex offender registry. If you were at least 18 at the time of the offense, you will be required to remain on the registry for a minimum of 20 years.

4. Defending sexual exploitation of a child charges

In order not to infringe on legitimate rights of free speech, Colorado's child pornography laws have very strict requirements. As a result, there are numerous defenses to Colorado child sexual exploitation charges.

Some of the more common defenses to child porn charges include (but are not limited to):

You didn't know you possessed the material.

There was a legitimate reason for your possession of the material (i.e., it wasn't for sexual gratification).

The touching in the material was not for sexual gratification – for example, it was a mother bathing her child.

The materials were found during an illegal search.

The “children” were 18 years of age or older.

You were a licensed physician, therapist, or social worker possessing the material for the purpose of bona fide treatment or evaluation.

5. Purpose of Colorado's child pornography laws

The Colorado legislature explained the purpose of its child porn laws in sections (1) and (1.5) of 18-6-403 C.R.S. as follows:

(1) The general assembly hereby finds and declares: That the sexual exploitation of children constitutes a wrongful invasion of the child's right of privacy and results in social, developmental, and emotional injury to the child; that a child below the age of eighteen years is incapable of giving informed consent to the use of his or her body for a sexual purpose; and that to protect children from sexual exploitation it is necessary to prohibit the production of material which involves or is derived from such exploitation and to exclude all such material from the channels of trade and commerce.

(1.5) The general assembly further finds and declares that the mere possession or control of any sexually exploitative material results in continuing victimization of our children by the fact that such material is a permanent record of an act or acts of sexual abuse of a child; that each time such material is shown or viewed, the child is harmed; that such material is used to break down the will and resistance of other children to encourage them to participate in similar acts of sexual abuse; that laws banning the production and distribution of such material are insufficient to halt this abuse; that in order to stop the sexual exploitation and abuse of our children, it is necessary for the state to ban the possession of any sexually exploitative materials; and that the state has a compelling interest in outlawing the possession of any sexually exploitative materials in order to protect society as a whole, and particularly the privacy, health, and emotional welfare of its children.

6. Do child pornography laws violate my right of free speech?

The Supreme Court has repeatedly held that restrictions on child pornography do not violate the First Amendment right of free speech.

In the landmark 1982 case New York v. Ferber, a unanimous court ruled that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.1 Thus, the court held, prohibiting possessing of sexually explicit images of children easily passes muster under the First Amendment.

7. Construction with federal law

You can be prosecuted under both Colorado and federal child pornography laws if your sexual exploitation of a minor has any connection whatsoever to the U.S. postal service or interstate or foreign commerce. Such a double prosecution does not violate the Double Jeopardy clause of the U.S. Constitution.2

The federal child pornography law is 18 U.S. Code 2251 – sexual exploitation of children. It prohibits involvement in any way with child pornography if any of the materials have been or will be produced or distributed via mail or in interstate or foreign commerce.

Under 18 U.S.C. 2251, a first-time conviction for sexual exploitation of children can include penalties of:

15-30 years in federal prison and

A fine of up to $250,000 (or two times your gross gain if you profited from the exploitation).

If, however, you have any prior federal, state or military conviction for sexual exploitation of a child, the sentence for federal exploitation of children increases to:

25-50 years in federal prison.

If you have more than one prior conviction (in any state, federal or military court), federal penalties for the sexual exploitation of children can include:

35 years – life in federal prison.

And if death results to any person as a result of your activities, you can be sentenced to the federal death penalty.

Note that there is no parole in the federal prison system. If you are convicted, you must serve out your entire sentence less credits for good behavior, if any.

Any person who intentionally gives, transports, provides, or makes available, or who offers to give, transport, provide, or make available, to another person a child for the purpose of sexual exploitation of a child commits procurement of a child for sexual exploitation, a Colorado class 3 felony.

Procurement of a child for sexual exploitation can be punished by:

4-12 years in prison, and/or

A fine of $3,000-$750,000.

Call us for help…

Our Colorado criminal defense lawyers understand how difficult it can be to be accused of sexual exploitation of a minor. In addition to the risk of substantial prison time, you face social stigma, the loss of employment and decades of being labeled a sex offender.

We know that innocent people are often accused of possessing child pornography when they had no criminal intent. And even when the charges bear merit, often what our clients really need is counseling, rather than a prison sentence.

If you have been charged with Colorado sexual exploitation of a minor, we invite you to contact us for a free consultation. Let us help you get your life back on track. After you speak with us, we're sure you'll agree we are some of the best criminal defense attorneys in Denver and elsewhere in Colorado. Our legal team can also help with release procedures at all of the state jails, including the La Plata County Jail.

For the fastest response, use the form on this page to contact one of our Colorado or Denver sex crimes lawyers. Or if you'd prefer, call us at our Denver home office:

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